dismissed EB-1C Case: Automotive Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-N-D-USA CORP 
APPEAL OF TEXAS SERVICE CENTER DECISION' 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 23, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an automotive parts manufacturing company, seeks to permanently employ the 
Beneficiary as the senior manager 'of its administration department under the· first preference 
immigrant classification for multinational executives or managers. Immigration and Nationality Act 
(the Act) section 203(b)(l)(C), 8 U.S.C. § l 153(b)(l)(C). This classification allows a U.S. employer 
to permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. . 
) 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that the Beneficiary was employed abroad in a managerial or executive 
capacity for at least one year. 
On appeal, the Petitioner asserts that the Director's decision cited an incorrect regulatory provision 
and did not consider the Beneficiary's employment abroad during the relevant three-year period 
preceding his entry to the United States to work for the Petitioner's claimed U.S. affiliate. The 
Petitioner submits additional evidence and contends that the Beneficiary was employed abroad by its 
parent company in a managerial capacity from 2009 until 2013. 
Upon de novo review, we will dismiss the appeal. 
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I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the Act. 
The Form 1-140, Immigrant Petition. for ·Alien: Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least.one year in the three years preceding 
the filing of the petition, tha:( the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign en~ployer, and that the prospective U.S. employer has 
been doing business for at least one year. See 8 C.F.R. § 204.5U)(3). 
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Matter ofS-N-D-USA Corp 
11. EMPLOYMENT ABROAD IN A MANAGERIALCAPACITY 
The primary issue to be addressed is whether the Petitioner established that its foreign parent 
company employed the Beneficiary in a managerial capacity for at least one year in the three years 
preceding his entry to the United States to work for a qualifying entity as a nonimmigrant. See 8 
. C.F.R. § 204.5G)(3)(i)(B). The Petitioner does not claim that the foreign entity employed the 
Beneficiary in an executive capacity ·. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
. manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional , or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over· personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
A. Relevant Three-Year Period 
At the time of filing in February 2017, the Beneficiary was employed by 
the Petitioner's claimed affiliate, in E-2 nonimmigrant status. His i'nitial. 
admission in E-2 status was on March l 0, 2013. Therefore, based on 8 C.F.R. § 204.5(i)(3)(i)(B), 
the Petitioner must establish that th~ Beneficiary worked for its foreign parent in 'a managerial 
capacity for at least one year between March 10, 2010 , and March 9, 2013 . 
On appeal, the Petitioner notes that the Director ' s decision erroneously cited to the regulation at 8 
C.F.R. § 204.5(i)(3)(i)(A), which is applicable to beneficiaries who are outside the United States. 
However, a review of the Director's decision as a whole reflects that he did in fact focus on the three 
year period preceding the Beneficiary's initial admission to the · United States, and applied the 
provision at 8 C.F.R: § 204.5(i)(3)(i)(B). Specifically, the Dire'ctor found that the Beneficiary was 
employed in a· managerial capacity from January 2013 until March 2013 . However, the Director 
concluded that the Petitioner did not submit sufficient evidence to demonstrate that the Beneficiary ' s 
previous position abroad , which he held from 2009 until January 2013, was in a managerial capacity . 
Based on the Director's stated reasoning , it is evident that the Director reviewed the three year 
period preceding the Beneficiary's entry to the United States. 
We agree with the Director's determination that the Beneficiary's last position with the foreign 
parent company, as "Manager of the Administration Department/' was in a managerial capacity. As 
the Director noted, the Beneficiary held that position for only three months. Therefore the remaining 
issue is whether the Petitioner established that the position the Beneficiary held from 2009 until 
January ,2013 - "Assistant Manager of the Administration Department" - was in a managerial 
, capacity . 
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Matter ofS-N-D-USA Corp 
The Petitioner must show that the Beneficiary, while employed. in the assistant manager role, 
performed high-level responsibilities consistent with the statutory definitions of managerial capacity . 
. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). In 
addition, the Petitioner must prove that the Beneficiary was primarily engaged in managerial duties, 
as opposed to ordinary ope~ational activities alongside the Petitioner's other employees. See Family 
Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World1 940 F.2d 1533. 
Beyond the description of the Beneficiary's job duties, we review the totality of the evidence when 
examining a beneficiary's claimed managerial capacity, including , the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees to 
relieve a beneficiary from performing operational duties, the nature of the business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in in the foreign 
entity .. Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the 
company's staffing levels/and reporting structure. 
B. Duties 
In its initial supporting letter, the Petitioner stated that the Beneficiary started in the foreign entity's 
administration department in December 2004 and wa:s promoted to the position of assistant manager 
of that department in January 2009. It described his duties in this role as follows: . 
In this position, [the Beneficiary] was responsible for reviewing staff members' 
reports on financial data collection and analyses, approving purchase recor'ds, and 
managing preparation of quarterly and annual financial performance. Furthermore, 
[the Beneficiary] reviewed and approved weekly/monthly reports submitted by the 
staff members to ensure the accounting activities were in compliance with the 
company goals and procedures. 
The Petitioner noted that the Beneficiary was promoted from assistant manager to manager of the 
administration department in January 2013, at which time he "was responsible for all the 
Administration activities, including directing and establishing departmental goals, budget, and 
objectives" and attending managerial meetings to repo11 on departmental issµes. 
The Petitioner's initial submission also included a letter from the foreign entity's 
director of general affairs. described the Beneficiary's duties as assistant manager of the 
administration department as follows: 
[The Beneficiary] directed three staff members in maintaining the administration 
system and administrative processes , as well as overseeing the staff members. Under 
[the Beneficiary ' s] direction , the staff members managed bookkeeping , analyzed , and 
recorded cash flow and budget of all the departments of [the foreign entity], managed 
financial standings of all subsidiary companies . . . , and prepared for any potential 
audits and financial statements. [The Beneficiary] recommended to the Manager of 
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Matter ofS-N-D-USA Corp 
Administration Department on hiring of any external auditors and accounting firms, 
implementing training sessions, and any human resources decision. 
noted that the Beneficiary became the manager of the administration department in 
January 2013, and stated that the manager role required him to spend the majority of his time 
performing managerial duties. He further stated that, as manager, the Beneficiary supervised two 
assistant managers who managed "the two staff members of the administration department." He 
explained that "all non-managerial duties were assigned to his subordinate assistant managers and 
team members," and emphasized that the Beneficiary had authority for all human resources 
decisions in the department. 
Finally, the Petitioner submitted a copy of the Beneficiary's resume. He states that his duties as the 
assistant manager of the administration department were to: review financial data analyses and 
reports; approve accounting and financial reports and submit to the manager; oversee staff members 
in analyzing financial data and meeting budget goals; coordinating with other departments in 
increase interdepartmental coordination; and, coordinating with external auditors to create biannual 
and annual financial statements. 
In a request for evidence (RFE), the Director observed that the Beneficiary held two different positions 
during the three years preceding his entry to the United States, and advised the Petitioner that it had 
submitted insufficient evidence to establish that either position was in a managerial capacity. 
· In response, the Petitioner submitted another letter from which contained a more detailed 
description of duties 'for the Beneficiary's position abroad as manager of the administration 
. department. He once again noted that the Beneficiary had been promoted to the assistant manager 
position in January 2009, and "was promoted again" in January 2013; however, he did not further 
address the Beneficiary's duties in the assistant manager role. r 
In the denial decision, the Director determined that the Petitioner did not submit sufficient evidence 
to establish that the Beneficiary's position of "Assistant Manager of Administration Department" 
was in a managerial capacity. · Therefore, the Director found that the Petitioner could not meet its 
burden to show that he had a full year of managerial employment with the foreign parent company 
prior to his transfer to the United States. 
On appeal, counsel claims that "[ w ]hile the 'title of the pos1t10n held by the Beneficiary was 
promoted from 'Assistant Manager of Administration Department' to 'Manager of Administration 
Depai1ment,' the Beneficiary served in the same managerial capacity , with same managerial duties, 
organizational structure and staffing levels, during these periods." Essentially , counsel states that the 
Beneficiary had performed the duties of the manager position since 2009 and that only his job title 
changed in January 2013. Counsel provides a description of the assistant manager position that is 
identical to the description previously provided for the manager position. 
\ 
However ,. the appeal does not include any supporting statements . from the Petitioner or the foreign 
entity to corroborate the statements made in counsel's brief. As noted, both the Petitioner and 
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Matter oJS~N-D-USA Corp 
foreign entity have consistently presented the assistant manager and manager positions as having 
distinct job duties and different levels of responsibility. For example , the foreign entity stated that 
the Beneficiary oversaw "staff members" while employed as an assistant manager, while he oversaw 
"assistant managers" with their own staff members once promoted to the manager position. These 
differences in level of responsibility are also reflected in the Beneficiary ' s own resume. 
If the two positions were actually the same, and the. "promotion" in 2013 was simply a change in the 
Beneficiary ' s job title, then it is reasonable to expect a statement from the Petitioner or foreign entity 
supporting counsel's claims and explaining why they previously characterized the positions as 
distinct and separate roles within the company . Assertions of counsel do not constitut~ evidence. 
Matter of Obaigbena , 19 l&N Dec. 533, 534 n.2 (BIA 1988) ( citing Matter of Ramirez-Sanch ez, 17 
l&N Dec. 503, 506 (BIA 1980)). Counsel 's statements must be substantiated in the record with 
independent evidence, which may include affidavits and declarations. Here, counsel's unsubstantiated 
claims have limited probative value and we cannot conclude that the "assi stant manager" position 
the Beneficiary held beginning in 2009 was in fact the same position as the "manager " position he 
assumed in 2013. 
Further, we find that the descriptions of the assistant manager position submitted prior to the denial, 
as quoted above, are not sufficiently detailed or comprehensive to support a finding that the position 
involved primarily managerial duties. Rather , the descriptions suggested that the position may have 
_been comparable to a lead accounting or senior finat1cial analystrole. For example, the statements in 
the record indicate that the Beneficiary reviewed various stqff-member reports as an assistant 
manager, but did not assume higher level duties , such as establishing departmental goals, budgets , 
and objectives , until he was promoted to the department manager position . 
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Although initial letter did state that both of the positions were managerial, it included 
very limited information regarding the assistant manager position. The Petitioner was informed that 
the position descriptions provided for both positions were deficient, but did not take the opportunity 
to provide a more detailed description of the assistant manager role in response to the RFE. 
As already discussed , the Petitioner has not provided additional probative information regarding the 
assistant manager position on appeal, and therefore has not established that the Beneficiary ' s actual 
duties in this role were in a managerial capacity . 
C. Staffing and Organizational Structure 
At the time of filing, the Petitioner submitted a copy of the foreign parent company's organizational 
chart dated December 31, 2012. The chart depicts at the head of the I 0-person 
administration department. However , .the chart does not clearly depict how the department was 
organized as there are no job titles and employees were grouped in list · form in separate blocks as 
follows: · · 
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Matter ofS-N-D-USA Corp 
Ad mini strati on 
[blank] 
[Beneficiary] 
' 
In response to the RFE, the Petitioner resubmitted an identical organizational chart, with the 
exception of the date, which was ~'January 2013" instead of "December 31, 2012." We note that 
both charts appear to be official corporate charts from the company's own records and not charts 
that were created for submission in sµpport of this petition. 
• I r ' 
r The Petitioner also attached a more det:;iiled chart of the administration department structure in 
response to the Director's RFE. This chart showed a general manager of administration department 
who supervised the Beneficiary (Manager of Administration Department -
Finance/ Accounting) and (Manager of Administration Department - HR/General 
Administration). The chart further indicates that the Beneficiary supervised a finance assistant 
manager and an accounting assistant manager Finally, the chart identifies a 
senior finance staff reporting to the finance assistant manager, and a payroll specialist 
reporting to the accounting assistant manager. 
On appeal, counsel emphasizes that the December.31, 20 I 2, and January 2013 organizational charts 
show the same departmental structure. Counsel emphasizes that this fact supports a finding that the 
Beneficiary's position within the hierarchy did not change when he was promoted from assistant 
manager to manager. However, the exact date of the Beneficiary's promotion has not been 
documented in the record; it is possible that both organizational charts from the foreign entity reflect 
the assistant manager position and .preceded the Beneficiary's promotion to manager at some point 
in January 2013. 
Further, counsel states that the second and third rows on. the chart identify the two "sub­
departmental groups": finance/accounting and HR/general administration. . Howe·ver, on both 
charts, the Beneficiary 's name is grouped with the employ t es who were identified in the detailed 
chart as staff in the HR/general administration group. If he was supervising · -------~ 
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Matter ofS-N-D-USA Corp 
and as indicated on the more detailed chart provided in response to the RFE, then it is 
unclear why he was not grouped wi~h these employees on the broader company organizational chart. 
. As noted, one possible explanation is that both the December 2012 and January 2013 charts depict 
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the Beneficiary's assistant manager position. 
Finally , we note that both the January 2013 and December 31 , 2012 charts show that the Beneficiary 
supervised three employees . This information is consistent with the foreign entity ' s claim that he 
"directed three staff members in maintaining the administrative system and administrative 
processes" while employed as assistant manager. Moreov~r, the more detailed chart submitted in 
response to the RFE supported the foreign entity's claim tbat the Beneficiary oversaw two assistant 
managers, and two · lower level staff, in his role as manager. Again, the two company-provided 
charts do not appear to depict the same structure as the more detailed chart detailing the staffing of 
the administration department. 
Absent a statement from the Petitioner or foreign entity clarifying that the Beneficiary ' s last two 
positions abroad involved the same duties and supervision of the same subordinates , counsel's 
· statements regarding the structure of the corripany and of the Beneficiary's department have very 
limited probative value. · 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(a)(44)(A) of the Act. The Petitioner has not articulated a 
claim that the Beneficiary managed an essential function of the foreign entity . Personnel managers 
are required to primarily supervise and control the work of other supervisory , professional, or 
managerial employees. Contrary to the common understanding of the word "manager ," the statute 
plainly states that a "first line supervisor is not considered to be acting in a managerial capacity 
merely by virtue of the supervisor's supervisory duties unless the employees supervised are 
professional." Id. If a beneficiary directly supervises other employees, the beneficiary must also . . 
have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3). 
For the reasons discussed, the record does not clearly establish which staff reported to the 
· Beneficiary when he served as an assistant manager in the administration department or the nature 
and scop~ of his personnel-related duties during that time. If the Beneficiary did in fact oversee the 
three members of the HR/general administration department as suggested by the foreign entity ' s 
official corporate charts , we note that the record does not clearly define the duties performed by the 
· staff in that department, or the educational credentials of those staff members. There is insufficient 
evidence to show that he primarily supervised supervisory, managerial, or professional employees 
while employed as an assistant manager. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary had at least 
one full-year of employment abroad in a managerial capacity prior to his transfer to the United 
States in E-2 status in March 20 I 3. 
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Matter ofS-N-D-USA Corp 
III. QUALIFYING RELATIONSHIP 
Although not addr~ssed in the Director's decision, we find insufficient evidence to establish a 
qualifying relationship between the Beneficiary's current E-2 employer and his last foreign 
employer. 
The Petitioner submitted sufficient eviden,ce to establish that it is a majority-owned subsidiary of the 
Beneficiary's last employer in Korea. However, in this case, since the Beneficiary has been 
employed in the United States for almost four years, we must also examine the relationship between 
the current U.S. employer and his last foreign employer. If the Beneficiary is not "in the United 
States working for the same employer or a subsidiary or affiliate of the firm or corporation or other 
legal entity by which_ [he J was, employed overseas," then .. the regulation at 8 C.F.R. 
§ 204.5G)(3)(i)(B) does not apply. 
The Petitioner claims that the Beneficiary's E-2 employer is an. affiliate of both the 
Petitioner and the foreign employer. In support of this claim, the Petitioner submitted a copy of. 
expired Blanket L approval notice. We note that the attached "List of all U.S. and foreign 
parent, branches, subsidiaries and affiliates," identifies the Beneficiary's foreign employer as an 
"affiliate" of and it identifies the Petitioner as a "subsidiary" of However, neither of 
these relationships is supported by the ownership information included on the approval notice. 
Specifically, the ownership of the three companies in question.is listed as follows: 
(current E-2 employer) 
Foreign employer 
Petitioner 
(80%) 
(58.33%) 
(13.89%) 
Foreign employer (51%) 
The Blanket L approval notice lists four shareholders for 
less than 50% of the company's shares. Among these individuals is 
11.16% of 
who own, in total, 
who owns 
While we acknowledge that USCIS previously approved the Blanket L petition for and 
determined that the listed entities are qualifying entities, the expired Blanket L approval notice is not 
sufficient to meet the Petitioner's burden of proof in this immigrant proceeding. In fact, the 
information provided on the approved list of entities indicates that the Beneficiary's current U.S. 
ernployer and his prior foreign employer do not have sufficient common ownership to qualify as 
affiliates as defined at 8 C.F.R . § 204.50)(2). We are not bound by a decision of a service center or 
district director. See La. Philharmonic Orchestra v. _INS, No. 98-2855, 2000 WL 282785, at *3 
(E.D. La. 2000), affd, 248 F.3d 1139 (5th Cir. 2001 ). 
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Matter ofS-N-D-USA C01p 
If the Beneficiary's period of E-2 employment was not with a qualifying entity, then he would not be 
able to m~et the one year of foreign employment requirement. We will not reach back to the three­
year period prior to his entry to the United States 'unless his nonimmigrant employment has been 
with a subsidiary, affiliate or other entity that has a qualifying relationship with the Beneficiary's 
foreign employer. ' 1 • 
While we are not denying the petition on this basis, we note that if the Petitioner chooses to further 
pursue this matter or to file a future petition which requires examination of the qualifying 
relationships between his U.S. and foreign employers, it will need to address and fully document the 
relationship between the Beneficiary's E-2. employer and his last employer in Korea. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the Beneficiary was 
employed abroad in a managerial capacity for the required one year period. 
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ORDER: The appeal is dismissed. 
Cite as Matter of S-N-D-USA Corp, ID# 1962004 (AAO Jan. 23, 2019) 
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